Friday, July 9, 2010

Initiative 1053 wouldn't fly in Sarah Palin's home state: What we can learn from Alaska

One of the unfortunate side effects that has resulted from John McCain's selection of Sarah Palin as his running mate in 2008 is the figurative beating that her home state of Alaska has had to endure. Many comedians and activists have become fond of cracking jokes about the Last Frontier in which Alaska is snidely portrayed as an ideologue-filled backwater inhabited exclusively by zealous reactionaries.

Although some progressives might find these jokes funny, as Northwesteners, we know that America's forty ninth state is not only home to many kindred spirits, but it's in the vanguard on several issues that are important to us.

For example, Alaska has constitutional provisions that discourage and limit abuse of the initiative process, whereas Washington does not.

The case concerned the rejection of a measure that had been filed in 2003 by Karen Bretz, a reactionary Alaska lawyer who apparently was a Grover Norquist clone much like Tim Eyman or Bill Sizemore. (I use the past tense because it doesn't appear that she has been very active in recent years).

Bretz' measure sought to bar the Legislature from raising revenue without a three-fourths vote (sound familiar?) Like Tim Eyman's Initiative 807 — which Eyman recycled in 2007 to create Initiative 960 — it failed to make the ballot, though not because Bretz and her cohorts couldn't gather enough signatures.

Rather, it failed because the Republican lieutenant governor at the time — Loren Leman — would not certify it. I'll let the Court explain the facts:

In 2003 Karen Bretz, an Alaska voter and organizer of a non-profit corporation called Alaskans for Efficient Government (AFEG), filed a petition that proposed a ballot initiative designed to curb new taxes. The initiative proposed: (1) to require a three-fourths (seventy-five percent) vote by the legislature (or a majority vote by the electorate) to enact or increase taxes; (2) to allow municipalities to use initiatives for limiting local taxes; and (3) to prohibit taxes on real estate transfers.

After consulting with the Department of Law, the lieutenant governor rejected the petition, notifying Bretz that the department had determined that the proposal "does not comply with the constitutional and statutory provisions governing the use of the initiative."

As the above excerpt implies, Alaska's lieutenant governor is also its chief elections officer. (In fact, prior to 1970, the position was known as Secretary of State). Alaska's Constitution specifies that the lieutenant governor shall certify an initiative petition "[i]f he finds it in proper form".

It further stipulates that "[d]enial of certification shall be subject to judicial review" (Alaska Constitution, Article XI, Section 11.2, Application).

So, just to recap, Bretz presented her petition to Lieutenant Governor Loren Leman, who rejected it after determining that it was blatantly unconstitutional and would have the effect of illegitimately changing the Constitution. Bretz subsequently sued and the issue landed before Alaska's Supreme Court, which ruled against her.

The Court summarized the matter as follows:

Alaska law usually requires an initiative to be enacted before its provisions become subject to challenge but allows a pre-election challenge if the initiative conflicts with a constitutional provision that limits the initiative process. Here, we conclude that the initiative’s supermajority requirement conflicts with Article II, Section 14 of the Alaska Constitution, which requires bills to be enacted by a majority vote. Since Article XI, Section 1 of the Alaska Constitution does not allow an initiative to amend a constitutional requirement, we hold that the initiative was properly rejected for violating constitutional restrictions on the initiative process.

Unlike Alaska's Constitution, Washington's doesn't explicitly instruct the Secretary of State to certify an initiative "if he finds it in proper form."

Consequently, when Tim Eyman filed Initiative 960 three and a half years ago, Sam Reed's office allowed it to move forward even though it was blatantly unconstitutional. Had a measure with language nearly identical to Initiative 960 (or I-1053) been filed in Alaska, it would have been rejected, obviating an underhanded attempt to use democracy to abolish democracy.

Our courts, however, did have the opportunity to preemptively nullify Initiative 960... because several weeks before Eyman submitted signatures for it, Futurewise and SEIU 775NW filed a legal challenge seeking to block the measure, inspired by the Alaska ruling, which had been released in February.

Their legal challenge was basically a mirror opposite of the one filed by Karen Bretz in Alaska. Bretz had petitioned the courts to unblock her measure, whereas Futurewise and SEIU were asking that Initiative 960 be denied placement on the ballot.

But instead of adopting the precedent established in Alaska, as Futurewise and SEIU 775NW urged it to, the Court defied uncommon sense and allowed I-960 to go forward, agreeing with the argument that a constitutional challenge was not appropriate until and unless the initiative was approved by the voters.

And so, here we are in 2010. Tim Eyman is running the third incarnation of a blatantly unconstitutional measure that would take away our cherished tradition of majority rule because the nine people charged with upholding our Constitution and protecting us from this kind of nonsense essentially refused to do their jobs.

Alaska's Supreme Court, on the other hand, saw fit to look at the constitutionality of Karen Bretz' measure, decisively concluding that it was illegitimate because it attempted an end-run around Alaska's Constitution.

In the state’s view, the majority-vote clause of Article II, Section 14, restricts the use of an initiative by establishing that, except when otherwise provided in the constitution, a majority vote of both houses is the exclusive method for enacting a bill.

Under this view, since a majority vote is a constitutional requirement and, as such, under Article XIII, is not subject to change by initiative, a proposal to adopt a supermajority vote by initiative is barred because it conflicts with constitutional provisions that place the topic off limits to the initiative process. As the state puts it:

The Alaska Constitution requires only a majority vote of each house of the legislature to enact legislation. The measure proposed by the AFEG initiative, however, would establish new, additional requirements for enactment of taxation legislation. Specifically, the proposed measure would require a 75 percent majority vote of both houses of the Alaska legislature, or approval of a majority of the electorate, to enact legislation that would impose or increase state taxes.

Such a fundamental change to the constitutional requirements for enactment of legislation constitutes an amendment to the Alaska Constitution. Under the Alaskan constitutional restrictions on initiatives, the initiative process cannot be used to amend the constitution.

Tim Eyman has claimed — as Karen Bretz did when her case was being argued before the Alaska Supreme Court — that the language stipulating that bills shall pass by majority vote is only a "minimum baseline" ... in other words, only a floor and not a ceiling. But Alaska's Supreme Court recognized that a supermajority is tantamount to a minority veto; and is thus inconsistent with their Constitution:

AFEG insists that the negative phrasing of Section 14’s majority-vote clause — “[n]o bill may become law without an affirmative vote of a majority” — should be read as signaling the framers’ intent to set a floor, not a ceiling: to require at least a majority vote while allowing laws imposing stricter requirements. If the framers had intended to require no more than a majority vote, AFEG contends, they would have drafted the clause to read: “Any bill may be enacted by an affirmative vote of the majority of the membership of each house.”

But as the state correctly observes, other courts interpreting constitutional language have wisely refrained from attributing any automatic significance to the distinction between negative and positive phrasing. Here, for example, had the framers said “any bill” rather than “no bill,” AFEG’s logic would just as readily compel the anomalous conclusion that section 14 was meant to set a ceiling but not a floor — that a majority vote would be the maximum needed to enact any bill, but the legislature would remain free to specify a sub-majority vote as sufficient to enact laws dealing with specified subjects, as it saw fit.

Translation: Requiring a supermajority to pass certain types of bills makes as much sense as allowing a submajority to pass certain types of bills: a procedure stipulating either standard gives a minority of lawmakers power over the majority. And that is not how democracy is supposed to work.

Proponents of Initiative 1053 who have made it to this point might be tempted to refute this post by claiming that Washington's Constitution is not the same as Alaska's, so what I've just discussed is inconsequential.

Actually, the relevant sections of each state's founding documents are remarkably similiar. Compare them yourself. Here is Alaska's:

Section 2.14 - Passage of Bills. The legislature shall establish the procedure for enactment of bills into law. No bill may become law unless it has passed three readings in each house on three separate days, except that any bill may be advanced from second to third reading on the same day by concurrence of three-fourths of the house considering it. No bill may become law without an affirmative vote of a majority of the membership of each house. The yeas and nays on final passage shall be entered in the journal.

And here is Washington's:

Section 22. Passage of Bills. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

Emphasis in both excerpts is mine.

Let me further demonstrate that the similarity of our highest law and theirs is no mere coincidence by comparing the first sentence from Article VII, Section 1 of Washington's Constitution with Article IX, Section 9.1 of Alaska's Constitution.

Washington's says:

Section 1. Taxation. The power of taxation shall never be suspended, surrendered or contracted away.

Alaska's says:

Section 9.1 - Taxing Power. The power of taxation shall never be surrendered. This power shall not be suspended or contracted away, except as provided in this article.

Ironic, isn't it? Alaska's Constitution — and ours — flatly states that we the people do not have the right to decide to stop pooling our resources for the common good. Yet that is what Tim Eyman's initiatives are all about: Getting us to the point where we have essentially suspended and surrendered the power of taxation.

One of our Constitution's greatest weaknesses is that it does not place substantive limits on the initiative process to deter and prevent abuse, as most other states that permit ballot measures do. In Alaska, there are a number of subjects which their Constitution explicitly says are off-limits for initiatives. These are:

[Article 11] Section 11.7 - Restrictions. The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation. The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.

I can think of several Eyman initiatives that probably would have run afoul of such a provision if it existed in our Constitution.

But we don't have such safeguards, and we have paid a price for it. This year's crop of corporate initiatives offers ample proof that the instruments of direct democracy have been corrupted. We need reform to protect the spirit and the integrity of the initiative process. And we need to reject Tim Eyman's latest attempt to sabotage our Constitution by voting NO on Initiative 1053.

Comments:

If only the Washington State Supreme Court would act to curb this nonsense. Alternatively voters could also be a little bit discriminating in what they sign and vote for in intiiatives. Common sense says that allowing a supermajority vote to decide something gives power to a minority to reject it. The Washington State Constitution is pretty clear on this. Seems Alaska has put Washington State to shame in resolving this issue.